FANMAC Ltd v JOHN FAIRFAX GROUP Pty Ltd [1993] NSWCA 92

FANMAC Ltd v JOHN FAIRFAX GROUP Pty Ltd SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and Cripps JJA 17 March 1993, 29 April 1993

[1993] NSWCA 92

APPEAL from Common Law Division — Defamation List — Action by Company for defamation of the Company — Whether matter published could be held to make the imputations pleaded — Imputations that, by lending funds to Company's officer, there had been a "misapplication" of the funds or a "misuse" of the funds — "Misuse" — Meaning of term in imputation — Form of imputations — Necessity to frame so as to avid ambiguity.

Mahoney JA On 18 July 1992 the defendant published in the Sydney Morning Herald an article which the plaintiff claims imputes, in its natural and ordinary meaning, the following:

"(a) The Plaintiff which was entrusted by the government with the lending of funds to low income earners misapplied a portion of those funds by lending them to one of its highly paid officers;

(b) The Plaintiff misused funds, which it administered for the purpose of providing subsidised loans to the disadvantaged through the HomeFund scheme, in that it permitted one of its top executives to personally authorise a cheap loan for herself to which she was not entitled."

The plaintiff claimed that those imputations were defamatory of it and claimed damages from the defendant.

On 6 November 1992 Levine J ordered that the plaintiff's proceeding be struck out with costs. The plaintiff has appealed to this Court against his Honour's judgment.

The circumstances in which the learned judge struck out the plaintiff's proceeding are referred to in his Honour's judgment of 6 November 1992. His Honour there said that the defendant had applied to the court under Pt31 of the Supreme Court Rules "to have determined the preliminary question as to whether or not the matter complained of is capable of bearing the imputations pleaded of and concerning the plaintiff'. It was not contested that published words may make imputations defamatory of a company and that the company may sue in defamation in respect of them: cf Derbyshire County Council v Times Newspapers Ltd (1993) 2 WLR 449.